The Supreme Court next week will hand down a decision on whether the Constitution provides citizens the right to same-sex marriage. As recently reported in the New York Times, Jeb Bush pledged, and rightly so, to support further debate “irrespective of what the courts say.” Whether the Supreme Court plays kick-the-can back to the states or follows the more likely path of inventing legal fictions that turn constitutional silence on marriage into a redefinition of it, conservatives especially should be readying themselves for just such vigorous debate. But how should we proceed?
The most serious and, to my mind, persuasive philosophical and moral arguments against same-sex marriage have been mounted by Robert P. George, Ryan Anderson, and Sherif Girgis in What Is Marriage? Man and Woman: A Defense. Such arguments are essential to ongoing debate about marriage in this country, not only for those of us who believe that the union of man and woman simply is the definition of marriage but also for those who think that the judicial redefinition of marriage represents a usurpation of politics.
One crucial argument, however, has been curiously absent. It takes a step back from the question of sexuality and the right to certain benefits under law. One reason why marriage is not mentioned in the Constitution is that the Founders recognized that the institution of marriage was a common good of the society and prior to politics. Put differently: Constitutional silence on marriage indicates a commitment to limited government that has so far eluded our debates about marriage in this country.
EDITORIAL: The Constitution Is Silent on Same-Sex Marriage
Let me explain.
The fundamental distinction on which a commitment to limited government rests is developed in conversation with ancient classical thought. Augustine was probably the first great theorist of “society” as something that is “pre-political” and that finds its most basic unit in the family. But as Thomas Aquinas notes, Aristotle also recognized this. The Philosopher says in the Nichomachean Ethics that man is more inclined to conjugal union than political union. Human beings are “social animals” before they are “political animals.” This provides the West with an anthropology for understanding that future citizens come into the world through the union of a man and a woman and that therefore the state has a stake in recognizing and protecting the institution of marriage. The family belongs to our social nature, and it is how a civil society continues to flourish and self-govern. The political union is subsequent to this prior reality. A properly ordered state will recognize and protect conjugal marriage precisely to the extent that it believes in pre-political limits to the exercise of its power.
This is actually good news for politics. When the state recognizes the nature of marriage as something prior to itself, it secures its own limits. When we acknowledge and recognize that by nature we are both social and political, we suddenly change the nature of politics. Our government no longer is tempted to define the whole of reality.
EDITORIAL: To Preserve Marriage and Democracy
What the state loses in terms of absolute power, it gains in terms of dignity of limit. When citizens, legislators, jurists, and voters recognize that the conjugal union is the source of life for civil society, they recognize something that is prior to the state. Such a view, rooted in the fundament of the Western political tradition, provides us with a “limited” conception of government as a means to “serve and protect” the common good of persons whose social nature constitutes the political union.
Now if we fast-forward to the present crisis, our debates about marriage should look different.
When the state recognizes the nature of marriage as something prior to itself, it secures its own limits. Our government no longer is tempted to define the whole of reality.
While the Supreme Court’s likely attempt to create yet another legal fiction in the steady expansion of its powers is particularly dramatic, we have seen a century-long attack on marriage, perhaps dateable to the early-20th-century embrace of artificial contraception, but certainly in its wake, between various modes of sterilizing efficiency, all the way to abortion, we have witnessed a total detachment of marriage from conjugal procreation.
The redefinition of marriage has been underway for some time, as many have noted. But we often miss the political significance of redefining marriage. What has happened is that the conjugal union is no longer posited as being prior to the political union, as it was for Aristotle, and even more strongly in the later development of the Western tradition. We have been witnessing the steady erasure of pre-political limits.
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Marriage has been severed from nature as such, and it has certainly been severed from any notion that marriage is for the propagation of the next generation of a society. We may think of the cultural transformation happening organically, but everything from contraception to no-fault divorce to abortion has been enforced by the government — most often at the highest level of the judiciary. But we should ask ourselves: Who stands to benefit from these erosions of marriage?
One reason why a state might enforce a legal redefinition of marriage is that the conjugal definition reminds us that there’s something natural on which the state depends.
#related#All the branches of our government stand to win a temporary increase in power from the erosion of marriage. The state will not resist any cultural attacks on conjugal marriage because such attacks further erase any notion of a social nature prior to the state.
To put it bluntly, the reason why we have seen so much power behind redefining marriage is not because it serves 1.8 percent of the population. It is because it serves Leviathan — the Hobbesian vision of an absolutely sovereign state with ever-expansive control over every aspect of our lives. There are natural checks that can curb this tendency toward absolute power, but we aren’t talking about marriage as an important pre-political makeweight to secure a free republic.
We urgently need to advance a debate about marriage and the limits of government. Our current judicial regime seeks not to recognize marriage but to redefine it on a political basis. In doing so, our government is claiming for itself a power that our Founders explicitly sought to limit. That’s the debate we are not having. And not having that debate will eventually mean a loss of freedom for everyone.